Chapter XXXV: Appendix: XX

[_The Champion_, a London Weekly Journal, Saturday, July 9th, 1814.]

_The Case of Lord Cochrane._

Lord Cochrane’s case is pregnant with the most weighty interests and
most touching considerations. Every subject of this country who has
access to a knowledge of the facts is bound, as a matter of positive
duty, to investigate its merits, with a view to behaving afterwards,
according to the means arising out of his condition, in the best way
calculated to assist the vindication of what his conviction shall tell
him to be justice, as it relates to the public and to the party. It
contains the most forcible appeal to every one distinctly to bring his
opinion to bear on it, that the irresistible strength of the popular
sentiment may either furnish to an injured person his remedy, or
solemnly confirm the disputed decision of the tribunal which has
adjudged him guilty of a serious offence. On one side, the common
feelings of humanity, as well as a regard for the national honour and
the general welfare, as composed of the safety of individuals, are
warmly excited, that an innocent man should not be suffered to perish,
to sink down and be overwhelmed in the gulf of infamy and ruin, in the
sight of us all standing around him, while he in vain cries to us for
help, and extends his arms to us for protection. If Lord Cochrane
shall be left by his countrymen to be sacrificed pursuant to his
sentence, and if there shall nevertheless appear to be good grounds
for disbelieving his guilt, we must blush for England; considering the
advantages which its people possess, they would be more disgraced by
the occurrence among them of a calamity of this kind, than the French
were by the murder of the Calas family,—we had almost said than by the
wholesale murders of the revolution, which were committed by a few
wretches possessed of power, whose atrocities were stupidly submitted
to by an ignorant and debased nation. The judges and others officially
concerned in convicting and punishing Lord Cochrane, have not by any
means their characters implicated in the correctness of these
proceedings to the same degree that the national character is
implicated in the conduct which its people shall now adopt between the
parties. A Court, during the judicial process, which only lasts a few
hours, may be misled by some great error; the administration of the
law must be regulated by prescribed forms, and these, however
generally useful, will often become hardships in their application to
particular cases;—the accused party may not be prepared with all the
evidence bearing on his cause, or may mar it by his injudicious
conduct, or his employed advocate may take a wrong view of what is for
the interest of his client. These possibilities should render us
cautious in attributing an erroneous judgment and unmerited sentence
to corrupt motives existing in the tribunal from whence they proceed;
but they also abundantly prove how much depends on holding no official
decision whatever exempt from scrutiny. We are astonished when we hear
such a man as Mr. Wilberforce declare that it is improperly disgracing
a court of law to submit the correctness of its proceedings to public
investigation; that gentleman, for whom we have the greatest respect,
is even averse to the interference of the House of Commons to
discharge such a duty, although facts of acknowledged difficulty and
of a nature to excite the keenest sympathy, thrust themselves on the
most superficial observation, forcing doubt, and, therefore, demanding
deliberation. This, if we understand him right, he does not deny, but
in their very teeth would acquiesce silently and impassively in what
has been done, lest, as he says, _we should throw reproach on the
administration of justice_—“the purest among the pure,”—the “fairest
among the fair,” and so forth. Does, then, Mr. Wilberforce forget,
that not only is the House of Commons legally competent to judge of
every act of authority up to the very highest, but that the real
superiority of this country’s political condition, and the conscious
feeling which we all have of the value of our constitution are to be
traced to its _exercise_ of this right. What should we have been if
this doctrine as to the indelicacy of scrutinising the conduct of
public functionaries had been always adopted? What enormities have
been the consequence of its temporary prevalence? Then, again, how can
it escape his acuteness that, as no human institution or person is
infallible, none ought to claim or receive an exemption from a
superintending cognisance? Farther, admitting, as he must when put to
it, that the Courts may pronounce wrong judgments, will he affirm that
they will be more disgraced by having the injurious effects of these
prevented by timely interference, than by an acquiescence in that
worst of all calamities and disgraces, the punishment of innocence?
This is the point which is so unaccountably overlooked by those who
take Mr. Wilberforce’s view of the question; they think, or at least
by their arguments would seem to think, that the correction of an
error is more disgraceful to the party who is wrong than its
perpetration; they do not seem to understand that the most honourable
thing that can be said of the institutions of any country, is that, as
a whole, they render it impossible that there should be any wrong
without a redress, an evil without a remedy,—and that each of these
institutions derives a respectability and strength from this general
eulogium, of a far more legitimate and lasting kind, than can result
from an impunity which tends to foster its worst errors and assist its
progress towards destruction.

We have said enough to show that, in our opinion, the House of Commons
ought to have conducted for itself an inquiry into Lord Cochrane’s
case; more particularly when facts were laid before it which raised
grave doubts of his Lordship’s guilt in the minds of some of its most
respectable and impartial members. It is the object of this article to
impress, that it now devolves on the public, and more particularly on
his Lordship’s constituents the electors of Westminster, to
investigate the whole business for themselves, by means of the various
documents and evidence which they can command. Our readers must not
look for these in our weekly sheet; we cannot among our miscellany
furnish them even with a correct outline of the proceedings of the
Court, the debates in the House of Commons, his Lordship’s defence,
and the affidavits supporting it. Most of these, however, are to be
procured, and justice, manliness, and humanity require they should be
attentively considered. We shall proceed to state and justify our own
sentiments on this most interesting affair, as they have been
influenced by the progressive information we have received. This will
be expected of us; but, we repeat, in a case like this, each ought to
investigate and judge for himself. As we have hitherto rested our
remarks on the possibility of Lord Cochrane’s innocence, it is proper
now to add that the voice of the public should now be raised in
defence of their legal authorities, and in reprobation of an indecent
obstinacy of denial, supported by falsehood wearing its most atrocious
features, should inquiry convince them of Lord Cochrane’s guilt.

We are impelled to mention first that, whether properly or improperly,
we previously cherished no particularly favourable opinion of Lord
Cochrane as he was known to the public. He always seemed to us more
likely to throw discredit on the cause of honest politics, by joining
the word reform with hasty, intemperate, and undignified proceedings,
than to accomplish any real good by his efforts, notwithstanding they
were generally directed to the removal of what was wrong. Besides
this, we thought we observed about him too little selection in his
companionships, and too little of what is high-mindedly delicate in
his conduct. We heard of the charge brought against him by the
Stock-Exchange certainly with no disposition to turn from it as
incredible; on the contrary, we leaned, with the majority, to a belief
of his guilt, through the weight of the accusation, and a certain
weakness, arising chiefly from incoherency, in his Lordship’s
inconsiderately published defence. The trial came on, and, by the
reports of it in the newspapers, our original belief was strengthened:
we saw no reason to doubt the propriety of the conviction; we began,
indeed, from what we heard and read, to fancy that Lord Cochrane’s
guilt might be less heavy than that of the others who were included in
the indictment; we suspected that he had not been made privy to the
mysteries of the plot, although he might have culpably connived at
what he knew to be going on, understanding that it would tend to his
advantage, but not perfectly acquainted, nor seeking to be, with all
the particulars.

With this impression on our mind, we at the same time felt that Lord
Cochrane had been exposed to various hardships and disadvantages, in
the course of the legal proceedings against him; and that these were
sufficient to put even innocence in a very precarious situation on its
trial; in short, to justify what an hon. member said in the House—that
he had need to be not only _fully_, but _fortunately_ guiltless, who
should escape conviction under such circumstances. The being included
in an indictment with a number of persons, several of whom he had
never seen, by which the evidence and the jury’s attention were
confused, and an odium was thrown on _all_ the accused should the
guilt of _any_ be proved; the refusal of the judge to attend to the
counsel, when they prayed that the trial might be adjourned before
they commenced the defence, after a sitting of fifteen hours, and when
the jury were incapable of giving close thought to the statement, the
adjournment taking place immediately when the defence was concluded,
by which the prosecutors had given to them a great advantage in
framing the reply; the very fierce and unqualified terms of the
judge’s charge to the jury, putting every fact in the strongest
language against his Lordship, and laying little or no stress on the
other side of the supposition;—all these things combined, constituted,
as we thought, a case of hardship, of which the convicted party might
reasonably complain.

The proceedings after the trial were more unequivocally severe. The
rule of the court, under which Lord Cochrane was refused a new trial,
because others over whom he had no control did not appear with him to
seek it, was plainly inconsistent with justice as distinct from law—at
least, as it operated in this instance; it therefore shocked the
public sense, and raised a strong feeling in favour of the aggrieved
party. It is pleasing to find Mr. Ponsonby, who is not only an eminent
lawyer, but one by no means to be suspected of a disaffected turn,
declare that this rule is as little founded in law as in justice or
reason; that it has, moreover, no ancient custom to plead in its
behalf, but is of very novel introduction. We have some ground, then,
for hoping that this piece of “profound wisdom,” as Sir W. Garrow
luminously termed it, which every one scouts as senseless and cruel,
and which is besides an _innovation_, will shortly give place to a
more liberal, and useful, and _ancient_ form of practice.

The facts contained in Lord Cochrane’s defence, made personally in
court when he was brought up to receive sentence, and which has since
been published in its entire form, threw a new light on many important
points of his case, and gave an explanation, reconciling with his
innocence several matters which served before to prove his guilt. This
is a document which our readers should not fail to peruse.

At last came the sentence, and, in common with all the world, we were
astounded by it. It thunderstruck the prosecutors, who felt abashed
and have petitioned against it; it amazed both sides of the House of
Commons; it disgusted all persuasions of people—those who acquiesced
in as well as those who dissented from the conviction. It seemed of
most forgetful severity, when Lord Cochrane’s naval services were
considered; of most injurious severity when his political conduct was
looked at in connection with the happier fate of certain peculators
and delinquents whose turpitude to the public had nothing to relieve
its atrocity but their subserviency to the court. In short, the
punishment awarded by the judge (we allude to the pillory) appears
almost to everyone over-charged, as it relates to the crime,
unsuitable as it relates to the person convicted, and unseemly as it
relates to him who presided at the trial. It is but fair to notice one
exception, by quoting from Sir Francis Burdett’s speech:—“The sentence
he thought cruel, disgusting, and severe beyond all example. The noble
Lord who was the object of it was the only person he had met with who
was not of this opinion. His Lordship, when he (Sir F. Burdett)
visited him in the King’s Bench Prison, said that he had not to
complain of his sentence, but of his conviction. Were he guilty, the
whole of his punishment, and more than the whole, was justly due to
him.”

We come now to the proceedings in the House of Commons. His Lordship’s
defence there ought certainly, in some way or other, to be got before
the public: with his feelings highly strung and irritated, as it would
seem, in an extraordinary degree, it contained passages reflecting on
the conduct of Lord Ellenborough, which the newspaper reporters were
told in plain terms they would publish at their peril. Lord Cochrane
evidently delivered himself under the almost maddening consciousness
of having been the victim of gross injustice; some of his accusations,
pronounced with great bitterness, it may be found necessary to keep
back; but the narrative and argumentative part of his statement should
certainly be printed. It had a prodigious effect on those who heard
him: several of the most impartial and steady Members declared that,
in their view, it established that there had been on the trial _a
misdirection of the jury by the judge of a most material nature_, and
to the prejudice of his Lordship as one of the accused; they added,
that on the facts which everyone thought told most against his
Lordship, he had shed a totally new light, either by offering to rebut
them with testimony that deserved attentive consideration, or by
explaining circumstances which altered their import, or by showing
with much simplicity and indication of general feeling how they had
been misconceived, and to what unlucky accidents it was owing that
they had operated to his prejudice. Persons whose respectability and
judgment will not be impeached from either side of the House protested
that under the weight of what they had heard they could not sleep on
their pillows were they to vote for Lord Cochrane’s expulsion without
further inquiry: many affirmed that the case had always appeared to
them doubtful, and that now their doubts had become of the most
serious kind. A gentleman who interrupted his Lordship in the course
of his animadversions on the Chief-Justice, avowed that however
injudicious and unfounded these circumstances were, he could not shut
up his opinion from facts so strong as those contained in the defence,
nor could he reconcile it to his conscience to add confirmation to a
verdict of the soundness of which he saw reason to doubt, and
bitterness to a fate which it was more than possible might be
undeserved.

Yet the House voted the expulsion of Lord Cochrane, not however
without a division. Forty-four were for further inquiry, and 140 for
expulsion. On the face of this proceeding it appears that forty-four
intelligent and honest men think that there is at least a strong call
for further investigation, yet Lord Cochrane has been _sentenced to
the pillory_! But if we read the speeches of the Members, we shall
find it by no means follows that the 144 who decided for expulsion,
are satisfied as to his Lordship’s guilt. Mr. Wilberforce, for
instance, speaks of the case as very distressing, and as very painful
to his feelings—but adds that _he deemed it his duty to bow to the
decision of the judge and jury_. Now, this is not an exercise but a
surrender of judgment; and, indeed, we may infer that Mr. Wilberforce
attaches at least doubt to the case, for otherwise he would not regard
it as distressing, but rather as one in which the offender had
deprived himself of every claim to compassion, by shameless obstinacy
and abandoned perjury. It is observable that the propriety of
expulsion was almost invariably rested on the propriety of _supporting
the court of law_, and on the many inconveniences which, as it was
truly enough said, would attend a reinvestigation of the proceedings.
The reader sees that these considerations have no connection with Lord
Cochrane’s guilt or innocence; yet, judging from the temper and
sentiment manifested by the House, we are inclined to believe that it
was these which chiefly produced its decision, and that a very large
proportion of the majority are far from satisfied in their minds that
their late associate has been properly convicted.

For ourselves, we have no hesitation to say, after a most impartial
study of the various documents, that our opinion is changed, and that
from thinking the weight of evidence on the side of Lord Cochrane’s
guilt we now think it on the side of his innocence. This, at least, is
incontestible, that great difficulties were imposed upon him by legal
forms; that the most important facts were misrepresented to his
prejudice on his trial; and that if the charge of the judge was
adopted by the jury as a clue to their decision, they have been
misguided.

The best statement of Lord Cochrane’s defence that we have seen was in
the _Morning Herald_; the reports in the _Times_ and _Chronicle_ gave
no idea of it; but we suppose it will speedily be published in a more
perfect form than any in which it has yet appeared. It makes perfectly
clear that the Chief-Justice’s most important assertion to the jury,
that Lord Cochrane received De Berenger “_in the costume of his
crime_,” is utterly unsupported by any evidence given on the trial,
and that it is in contradiction to several strong probabilities:—it
directs attention to the singular fact that Lord Ellenborough, in some
instances, quoted Lord Cochrane’s voluntary affidavit for proof
against him, and in others denied it all authority and truth:—it does
all but prove that De Berenger’s dress, when he came in the
hackney-coach to Lord Cochrane’s house, was falsely described by the
coachman, and it convicts this witness of other falsehoods, while it
justifies a belief that he may have been actuated by a corrupt desire
for the reward, by showing that he is a convicted ruffian of the
vilest kind:—it satisfactorily accounts for the non-examination of
Lord Cochrane’s servants by counsel on the trial, for whose
examination his Lordship pressed by note when the proceedings were
going on, who would have proved that De Berenger’s dress was not of a
kind to excite suspicions in any breast:—it makes very manifest that
Lord Cochrane has suffered by being joined with others whose guilt
must be presumed; conscious of his own innocence, and therefore
believing theirs, he left to them the trouble of arranging the defence
to the indictment, and neither his wishes nor his interests seem to
have been consulted:—it establishes that he had no connection with De
Berenger’s defence, and gives reason to believe that he was but little
acquainted with his person:—it tenders fresh testimony, on the oaths
of five respectable witnesses, as to the manner in which Lord
Cochrane’s bank-notes found their way into De Berenger’s hands:—in
fine, it mentions a multiplicity of circumstances furnishing
presumption of innocence, and makes it indubitable that the case might
have had much assistance of which it has been from one cause or
another deprived.

(Signed) “ED.”

I have only selected such opinions of the press as may serve to elucidate what has been advanced. Were I to collect public opinion as expressed at the time, such collection would far more than exceed this volume in bulk. If necessary for my fuller defence, it must yet be adduced, should my life be spared. That my days have been thus far prolonged, is, under Providence, to be attributed to the skill of my physician, Dr. Bence Jones, and to the unremitting care and attention of my constant medical attendant, Mr. Henry Lee, of Savile Row.

DUNDONALD.

END OF THE SECOND VOLUME.

LONDON
PRINTED BY SPOTTISWOODE AND CO.
NEW-STREET SQUARE.

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Transcriber’s Note

In the Table of Contents, the Appendices were shown to begin on p. 410. The correct page number is p.401.

Several compound words appeared midline both with and without a hyphen (e.g. fire-ship/fireship). Where the hyphen appears at a line break, it is either removed or retained, depending on other instances of the word.

At 222.9 and on the following page, the printer failed to use single quotes to delimit embedded quotes of words and phrases: ‘_army flotilla_’, ‘army’, ‘_march in ordinary time_’.

Other errors deemed most likely to be the printer’s have been corrected, and are noted here. The references are to the page and line in the original.

9.8 and so fra[u]dulently from the original Inserted.

31.12 the deep water[”] See p. 32
line 4.

32.24 to nineteen feet[”] Added.

34.3 at 11 [a.m./A.M.] Replaced.

38.4 there at all[.] Added.

59.13 as I have already mentioned.” Added.

77.32 _that point_.[”] What he really said Added.

82.15 NO INTENTION OF ATTACKING[.] Added.

124.13 the production of “_Minutes_[”] Added.

150.30 “It may [h/b]e that Replaced.

220.9 were not listen[d]ed to Removed.

233.19 Lieut.-Col[.] Colquhoun. Added.

271.17 the family fort[n/u]ne. Inverted.

280.4 to lie on the table.[”] Added.

294.3 by long[c o/ co]nfinement Shifted.

303.15 Croker’s own words[ I,/, I] shall do Replaced.

326.6 I shall ever consider this inte[r]ference Inserted.

344.7 HOW GOT UP[.] Added.

370.23 the same mi[m/n]istry Replaced.

413.5 _[I/L]’Océan_, 120 guns Replaced.

419.35 [Caledonia’s/_Caledonia’s_] signal, Italicize.

426.15 he had [“]in contemplation” Probable.

469.10 they have of his Lordship’[s] innocence Italicize.

470.30 in their own persons[.] Added.

472.11 the pretens[i]on of lawyers Inserted.

486.10 Mr. Wilbe[r]force attaches Inserted.